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Civil Action No. 06 CV 1637

MATHILDE FREUND, ET AL.,

Appellants,

v.

SOCIÉTÉ NATIONALE DES CHEMINS DE FER FRANCAIS,

Appellees.

ON APPEAL TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF OF AMICUS CURIAE OF THE HUMAN

RIGHTS COMMITTEE OF THE AMERICAN

BRANCH OF THE INTERNATIONAL LAW

ASSOCIATION SUPPORTING REVERSAL AND REMAND

JORDAN J. PAUST MIKE & TERESA BAKER LAW CENTER PROFESSOR UNIVERSITY OF HOUSTON LAW CENTER 100 Law Center Houston, TX 77204-6060 (713) 743-2177 Fax (713) 743-2238 Counsel for Amicus Curiae

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TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES

INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

I. Confiscation Is a Violation of International Law

II. The Alleged Takings Fit Within Section 1605(a)(3) of the FSIA

III. The Act of State Doctrine Does Not Apply to War Crimes

IV. A Comity-Factors Approach Must Not Be Applied to War Crimes

V. Issues Whether War Crime Responsibility Exists Are Not “Political” But Legal Questions

CONCLUSION

TABLE OF CITED AUTHORITIES

UNITED STATES CASES

Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996) Alperin v. Vatican Bank, 410 F.3d 532 (9th Cir. 2005) Altmann v. Republic of Austria, 317 F.3d 954 (9th Cir. 2002) Asakura v. City of Seattle, 265 U.S. 332 (1924) Banco Nacional de Cuba v. Chase Manhattan Bank, 658 F.2d 875 (2d Cir. 1981) Banco Nacional de Cuba v. Farr, Whitlock & Co., 383 F.2d 166 (2d Cir. 1967)

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Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964) Berg v. British and African Steam Navigation Co. (The Prize Ship “Appam”), 243 U.S. 124 (1917) Bowoto v. Chevron Corp., 2007 WL 2349345 (N.D. Cal. 2007) Cabiri v. Assasie-Gyimah, 921 F. Supp. 1189 (S.D.N.Y. 1996) Cassirer v. Kingdom of Spain, No. CV-05-3459-GAF, slip op. (C.D. Cal. Aug. 30, 2006) Daventree, Ltd. v. Republic of Azerbaijan, 349 F. Supp.2d 736 (S.D.N.Y. 2004) De Geofroy v. Riggs, 133 U.S. 258 (1890) Doe v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997) Doe I v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002) Edye v. Robertson, 112 U.S. 580 (1884) Elrod v. Alexander, 51 Tenn. 342 (1871) Enahoro v. Abubakar, 408 F.3d 877 (7th Cir. 2005) Ex parte Quirin, 317 U.S. 1 (1942) Factor v. Laubenheimer, 290 U.S. 276 (1933) Filartiga v. Pena-Irala, 577 F. Supp. 860 (E.D.N.Y. 1984) Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 133 (1810) Forti v. Suarez-Mason, 672 F. Supp. 1531 (N.D. Cal. 1987) Hauenstein v. Lynham, 100 U.S. 483 (1879) Hawkins v. Nelson, 40 Ala. 553 (1867) In re Estate of Ferdinand Marcos, Human Rights Litigation Hilao v. Estate of Ferdinand Marcos, 25 F.3d 1467 (9th Cir. 1994) Jordan v. Tashiro, 278 U.S. 123 (1928) Johnson v. Eisentrager, 339 U.S. 763 (1950)

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Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) Letelier v. Republic of Chile, 488 F. Supp. 665 (D.D.C. 1980) Linder v. Portocarrero, 963 F.2d 332 (11th Cir. 1992) Liu v. Republic of China, 892 F.2d 1419 (9th Cir. 1989) Miller v. United States, 78 U.S. 268 (1870) Nielsen v. Johnson, 279 U.S. 47 (1929) O’Neill v. Central Leather Co., 94 A. 789 (N.J. Err. & App. 1915) Owings v. Norwood’s Lessee, 9 U.S. (5 Cranch) 344 (1809) Paul v. Avril, 812 F. Supp. 207 (S.D. Fla. 1993) Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp.2d 289 (S.D.N.Y. 2003) Princz v. Federal Republic of Germany, 26 F.3d 1166 (D.C. Cir. 1994) Republic of Iraq v. First National City Bank, 353 F.2d 47 (2d Cir. 1965) Ross v. Rittenhouse, 2 U.S. (2 Dall.) 160 (Pa. 1792) Sarei v. Rio Tinto, PLC, 487 F.3d 1193 (9th Cir. 2007) Shanks v. Dupont, 28 U.S. (3 Pet.) 242 (1830) Siderman de Blake v. Argentina, 965 F.2d 699 (9th Cir. 1992) Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801) The Charming Betsy, 6 U.S. (2 Cranch) 64 (1804) The Peterhoff, 72 U.S. (5 Wall.) 28 (1866) The Resolution, 2 U.S. (2 Dall.) 1 (1781) The Santissima Trinidad, 20 U.S. (7 Wheat.) 282 (1822) The Schooner Nancy,

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27 Ct. Cl. 99 (1892) The Ship Rose, 36 Ct. Cl. 290 (1901) Titus v. United States, 87 U.S. 475 (1874) United States v. La Jeune Eugenie, 26 F. Cas. 832 (C.C.D. Mass. 1821) (No. 15,551) United States v. Payne, 264 U.S. 446 (1924) Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796) West v. Multibanco Comermex, S.A., 807 F.2d 820 (9th Cir. 1987) Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995) CONSTITUTIONAL PROVISIONS U.S. Const., art. III, § 2 INTERNATIONAL CASES

Opinion and Judgment, International Military Tribunal at Nuremberg (Oct. 1, 1946)

FOREIGN CASES

Otto Abetz, Cour d’Cassation (Ch. crim.), 28 July 1950 Prefecture of Voiotia v. Federal Republic of Germany, TREATIES

Hague Convention (No. IV) Respecting the Laws and Customs of War on Land, 36 Stat. 2277, T.S. No. 539 (Oct. 18, 1907) UNITED STATES STATUTES

28 U.S.C. § 1331 Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 § 1605(a)(3) OPINIONS OF U.S. ATTORNEYS GENERAL

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1 Op. Att’y Gen. 26 (1792) 9 Op. Att’y Gen. 356 (1859) 11 Op. Att’y Gen. 287 (1865) MISCELLANEOUS MATERIALS

Instructions for the Government of Armies of the United States in the Field, General Orders No. 100 (1863) [The Lieber Code] Major-General Halleck’s General Orders No. 107 (Aug. 15, 1862) 1919 List of War Crimes, Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, Paris Peace Conference (March 29, 1919) U.S. Dep’t of Army, Field Manual 27-10, The Law of Land Warfare (1956) House Report No. 94-1487 (1976) Senate Report, S.Rep. No. 249, 102nd Cong., 1st Sess. 8 (1991) Restatement of the Foreign Relations Law of the United States (3 ed. 1987) Adam Roberts & Richard Guelff, Documents on the Laws of War (3 ed. 2003) Jordan J. Paust, M. Cherif Bassiouni, et al., International Criminal Law (3 ed. 2007) Jordan J. Paust, M. Cherif Bassiouni, et al., International Criminal Law Documents Supplement (2006) Jordan J. Paust, Jon M. Van Dyke, Linda A. Malone, International Law and Litigation in the U.S. (2 ed. 2005) Jordan J. Paust, In Their Own Words: Affirmations of the Founders, Framers, and Early Judiciary Concerning the Binding Nature of the Customary Law of Nations, 14 U.C. Davis J. Int’l L. & Pol’y 205 (2008) Jordan J. Paust, Judicial Power to Determine the Status and Rights of Persons Detained Without Trial, 44 Harv. Int’l L.J. 503 (2003) Emerich de Vattel, The Law of Nations (1758)

INTEREST OF AMICUS CURIAE

Amicus Curiae, the Human Rights Committee of the American Branch of the

International Law Association, is composed of lawyers and professors of law who have practiced

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and/or lectured and/or published widely on these and related matters.1 This amicus

memorandum sets forth their considered views. We generally oppose decisions of the District

Court below. However, we focus here on five main points of international law and its

incorporation as law of the United States for purposes of litigation, as explained in the Summary

of Argument.

SUMMARY OF ARGUMENT

The alleged confiscations or takings of property at issue in this case would definitely

violate treaties and customary international law applicable at the time of the alleged conduct of

defendant appellee. More specifically, the confiscations or takings would violate treaty-based

and customary laws of war. It follows that, assuming plaintiffs’ allegations as true, the first

element of Section 1605(a)(3) of the FSIA is clearly met – “rights in property [were] taken in

violation of international law [and such rights] are in issue.” 28 U.S.C. § 1605(a)(3). Moreover,

there is no requirement in § 1605(a)(3) that the taking be made by the foreign state as opposed to

an agency or instrumentality of a foreign state. Further, for purposes of the FSIA, “except as

used in Section 1608,” the phrase “foreign state ... includes ... an agency or instrumentality of a

foreign state.” Id. § 1603(a).

Furthermore, the act of state doctrine only applies to lawful “public” acts of a state. It

does not apply to war crimes (in this case, unlawful takings of property in violation of the laws

1 No counsel for a party authored this brief in whole or in part, and no such counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person, other than amicus curiae, their members, or their counsel, made a monetary contribution to the preparation or submission of this brief. The parties have consented to the

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of war) because they cannot be lawful “public,” “sovereign,” or “official” acts of any state and

are ultra vires. A number of international, foreign, and U.S. cases have made these or similar

recognitions. Additionally, a comity-factors approach must not be applied with respect to

jurisdiction over war crimes, since they implicate universal jurisdiction and nonimmunity under

international law. Congress has not chosen a comity-factors limitation of jurisdiction that

pertains under the FSIA, and it would be improper for a court to legislate a new limitation that

Congress has not chosen. In fact, Congress has directed the courts to decide cases in conformity

with the principles set forth in the FSIA, which include attention to international law. More

generally, the Supreme Court has directed that federal statutes must be interpreted in conformity

with international law, which in this case provides universal jurisdiction and nonimmunity with

respect to war crimes. Finally, these issues are justiciable legal issues and not political questions.

§ 1602 of the FSIA even directs the courts to decide these issues in conformity with the

principles set forth in the FSIA.

ARGUMENT

I. CONFISCATION IS A VIOLATION OF INTERNATIONAL LA W

Although the district court opinion “assumes” that the takings of property in issue were

violations of international law or, “that at least some of the alleged expropriations violated

international law” (D. Ct. op. at 12-13), it should be made clear that the alleged confiscations or

takings of property here in issue would definitely violate international treaties and customary

international law extant at the time.

First, we note that confiscation is different than “expropriation” as such, but both can be

filing of this brief.

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takings. Confiscation is the taking of property without payment of any sort and confiscation has

long been illegal under general international law. See, e.g., Ware v. Hylton, 3 U.S. (3 Dall.) 199,

299 (1796); Altmann v. Republic of Austria, 317 F.3d 954, 968 (9th Cir. 2002), aff’d, 541 U.S.

677 (2004); Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 711 (9th Cir. 1992),

citing West v. Multibanco Comermex, S.A., 807 F.2d 820, 826 (9th Cir. 1987); Banco Nacional

de Cuba v. Chase Manhattan Bank, 658 F.2d 875, 891 (2d Cir. 1981) (“the failure to pay any

compensation to the victim of an expropriation constitutes a violation of international law”);

Banco Nacional de Cuba v. Farr, Whitlock & Co., 383 F.2d 166, 170-72 (2d Cir. 1967), cert.

denied, 390 U.S. 956 (1968); Republic of Iraq v. First National City Bank, 353 F.2d 47, 50-52

(2d Cir. 1965), cert. denied, 382 U.S. 1027 (1966); Cassirer v. Kingdom of Spain, No. CV-05-

3459-GAF, slip op. at 16 (C.D. Cal Aug. 30, 2006) (quoting Sidermann); O’Neill v. Central

Leather Co., 94 A. 789 (N.J. Err. & App. 1915); Hawkins v. Nelson, 40 Ala. 553, 556 (1867)

(quoted below); RESTATEMENT OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 712

(1)(c) (3 ed. 1987) (state responsibility exists under international law for a taking that “is not

accompanied by provision for just compensation”).

In this instance, the alleged takings of property occurred during war to which the laws of

war also applied. The Vichy Government in France, and SNCF as an agency or instrumentality,

were engaged in complicitous behavior – each also in support of Germany, the occupying power

in France. Such complicitous behavior included the takings of property of French citizens and

those of other nationalities in this instance by and with SNCF. Under Article 46 of the Annex to

the Hague Convention (No. IV) Respecting the Laws and Customs of War on Land, 18 October

1907, 36 Stat. 2277, T.S. No. 539, during occupation “[p]rivate property cannot be confiscated.”

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Both France and Germany were parties to the treaty by 1910. See ADAM ROBERTS & RICHARD

GUELFF, DOCUMENTS ON THE LAWS OF WAR 83 (3 ed. 2003). Such confiscation is a violation of

the laws of war and every violation of the laws of war is a war crime regardless of the status of

the perpetrator (e.g., as civilian or military). See, e.g., U.S. Dep’t Army, Field Manual 27-10,

THE LAW OF LAND WARFARE 178, para. 499 (1956).

The U.S. Army Manual affirms the prohibition of confiscation reflected in Article 46 of

the Annex to the 1907 Hague Convention and then adds: “The foregoing prohibition [of

confiscation of private property] extends not only to outright taking in violation of the law of war

but also to any acts which, through threats, intimidation, or pressure or by actual exploitation of

the power of the occupant, permanently or temporarily deprive the owner of the use of his

property, without his consent or without authority under international law.” Id. at 152, para. 406.

Although German defendants had argued that the 1907 Hague Convention No. IV was not

applicable during World War II because of a “general participation” clause in Article 2 (stating

that it applies “only if all the belligerents are parties to the Convention”), it was recognized by

the International Military Tribunal at Nuremberg that the Convention had reflected customary

international law that was universally applicable without such a treaty-based limitation by 1939,

i.e., by the start of World War II. See Opinion and Judgement, International Military Tribunal at

Nuremberg (Oct. 1, 1946), pt. III (2) (“by 1939, these rules laid down in the Convention were

recognized by all civilized nations, and were regarded as being declaratory of the laws and

customs of war”), extract reprinted in JORDAN J. PAUST, M. CHERIF BASSIOUNI, ET AL.,

INTERNATIONAL CRIMINAL LAW 458, 463 (3 ed. 2007) [hereinafter PAUST, BASSIOUNI, ET AL.,

ICL], also noting the customary nature of the Hague Convention by 1939, id. at 6.

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Prior to the 1907 Hague Convention, Article 37 of the influential 1863 Lieber Code had

recognized that “[t]he United States acknowledge and protect ... strictly private property....

Offenses to the contrary shall be rigorously prosecuted.” Instructions for the Government of

Armies of the United States in the Field, General Orders No. 100 (1863), extract reprinted in

PAUST, BASSIOUNI, ET AL., INTERNATIONAL CRIMINAL LAW DOCUMENTS SUPPLEMENT 101, 103

(2006) [hereinafter PAUST, BASSIOUNI, ET AL., DOCS]. The Lieber Code was created in an attempt

to reflect customary laws of war that were universally applicable. See, e.g., PAUST, BASSIOUNI,

ET AL., ICL, supra at 639.

Later in the U.S., but prior to the 1907 Hague Convention, the Supreme Court recognized

that certain properties of an “enemy” could be confiscated, but “the laws of war do not justify the

seizure and confiscation of any private property except that of enemies.” Miller v. United States,

78 U.S. 268, 310 (1870). See also Titus v. United States, 87 U.S. 475, 476 (1874) (regarding

“confiscation of property ... requiring under the laws of war a judicial sentence of condemnation

to divest title” of an enemy owner); Elrod v. Alexander, 51 Tenn. 342 (1871) (“‘The laws of the

United States and the general laws of war authorize, in certain cases, the seizure and conversion

of private property for the subsistence, transportation and other uses of the army; but this might

be distinguished from pillage, and the taking of property for public purposes is very different

from its conversion to private uses...,’” quoting “Revised U.S. Army Regulations, 1863, sec. 21,

p. 512; Lieber’s Instructions, paras. [arts.] 37, 45; General Orders, 1863, pp. 70, 72.”); Hawkins

v. Nelson, 40 Ala. 553, 556 (1867) (quoting similar language as in Elrod, from Major-General

Halleck’s General Orders No. 107 (Aug. 15, 1862), which added recognition of the crimes of

“pillage or plundering.” Id. art. 52.).

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Among a 1919 List of War Crimes prepared by the Commission on the Responsibility of

the Authors of the War and on Enforcement of Penalties that was presented to the Preliminary

Peace Conference after World War I in Paris on March 29, 1919, were the customary war crimes

of “[p]illage” and “[c]onfiscation of property.” Crimes Nos. 13 & 14, List of War Crimes,

Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties

(Mar. 29, 1919), reprinted in PAUST, BASSIOUNI, ET AL., DOCS, supra at 111. France was a

member of the Commission. Id.

II. THE ALLEGED TAKINGS FIT WITHIN SECTION 1605(A) (3) OF THE FSIA

In view of the fact that confiscation and pillage of private property were takings of

property in violation of customary international law at the time of the alleged takings in this case,

and assuming plaintiffs’ allegations as true, the first element of Section 1605(a)(3) of the FSIA is

clearly met, i.e., “rights in property taken in violation of international law are in issue.”

Furthermore, since complicity creates criminal responsibility under the laws of war that is

subject to criminal and civil sanctions (see, e.g., PAUST, BASSIOUNI, ET AL., ICL, supra at 44-49;

FM 27-10, supra at 178, para. 500), we see no reason to read Section 1605(a)(3) restrictively.

Also compare Altmann v. Republic of Austria, 317 F.3d 954 (9th Cir. 2002) (the FSIA applies to

Nazi era “complicity in and perpetuation of the discriminatory” takings of art works in violation

of the 1907 Hague Convention); see also Alperin v. Vatican Bank, 410 F.3d 532 (9th Cir. 2005)

(bank was involved in conversion and unjust enrichment).

The first element in § 1605(a)(3) merely requires that the property in issue be “taken in

violation of international law.” Unfortunately, the district court below engaged in an activist

effort at judicial legislation when using a “‘presumption of separateness’” of a foreign state and

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its entities in an attempt to rewrite the FSIA as if it “prevents the ‘takings’ exception from being

used to exert jurisdiction over ‘foreign states’ on the basis of conduct by entities with separate

juridical status.” D.Ct. op. at 12. There is no such limit in the statute or in its legislative history.

If anything, § 1603(a) generally treats a foreign state agency or instrumentality as the “foreign

state.” For purposes of the FSIA, “except as used in Section 1608,” the phrase “foreign state ...

includes ... an agency or instrumentality of a foreign state.” Id. § 1603(a). Although §

1605(a)(3) does not mention a requirement that the taking be by a foreign state and no such

limitation exists, had Congress used the phrase “foreign state” to limit the class of takers of

property, the phrase would have to be interpreted in accordance with the express language used

in § 1603(a) to also cover takings by “an agency or instrumentality.” It also happens that a

covered agency or instrumentality must be “a separate legal person” (§ 1603(b)(1)), but this does

not affect the fact that for purposes of the FSIA (outside of § 1608) a “foreign state” includes an

agency or instrumentality of the state.

We note also that under international law, which is the relevant criterion under

1605(a)(3), separate juridic entities and persons can each be responsible as complicitors in the

taking of property in violation of international law or with respect to any international crime or

violation even though some other entity or person is the direct perpetrator. Furthermore, under

international law, a taking of property in violation of international law can occur at the hands of a

state or private actor. The fact that brief legislative history mentions “nationalization or

expropriation” as a non-exclusive example and then addresses “takings that are arbitrary or

discriminatory” as further examples of takings covered in the legislation cannot rightly lead to

the conclusion that 1605(a)(3) was meant to apply only to takings “by a sovereign.” But see D.

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Ct. op. at 11. Congress chose no such limiting words and it would be improper for a court to

rewrite a federal statute in a way that Congress has not chosen. Moreover, “takings that are

arbitrary or discriminatory” can occur at the hands of private actors (including juridic persons)

and the phrase quoted is, therefore, not proof of an intent to limit § 1605(a)(3) to “sovereign”

takings.

III. THE ACT OF STATE DOCTRINE DOES NOT APPLY TO W AR CRIMES

The act of state doctrine can only apply to “public” acts of a state. See, e.g., Banco

Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964) (“public acts”) (a case that is sometimes

misunderstood as if the act of state doctrine can apply with respect to a violation of international

law, but the Court stressed that customary international law concerning a standard of

compensation was not proven where “[]here are few if any issues in international law today on

which opinion seems to be so divided” [id. at 428] and there are areas where “consensus as to

standards” exist and “do not represent a battleground for conflicting ideologies. This decision in

no way intimates that the courts ... are broadly foreclosed from considering questions of

international law” where such law exists. Id. at 430 n.34.).

The act of state doctrine does not apply to war crimes, because such crimes cannot be

lawful “public,” “sovereign,” or “official” acts of any state and are ultra vires. As the

International Military Tribunal at Nuremberg ruled:

“the doctrine of sovereignty of the State ... cannot be applied to acts which are

condemned as criminal by international law. The authors of these acts cannot shelter

themselves behind their official position.... He who violates the laws of war cannot obtain

immunity while acting in pursuance of the authority of the State if the State in authorising

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action moves outside its competence under international law.”

Opinion and Judgment, International Military Tribunal at Nuremberg (Oct. 1, 1946).

A similar lack of immunity formed a basis for the prosecution of a German Ambassador

for war crimes in the French case of Otto Abetz. Cour d’Cassation (Ch. crim.), 28 July 1950,

extract in 46 AM. J. INT’L L. 161 (1952). A 1997 decision of a Greek court allowed litigation to

proceed against Germany with respect to atrocities committed by German occupation forces

during WWII partly because “acts of a state that violates jus cogens norms do not have the

character of sovereign acts” and are “null and void, and cannot constitute a source of legal ...

privileges, such as the claim to immunity.” Prefecture of Voiotia v. Federal Republic of

Germany, extract addressed in JORDAN J. PAUST, JON M. VAN DYKE, LINDA A. MALONE,

INTERNATIONAL LAW AND LITIGATION IN THE U.S. 731-32 (2 ed. 2005). In 2000, the Hellenic

Supreme Court affirmed nonimmunity, noting that the murders in question were crimes against

humanity and an abuse of sovereign power that were not protectable acts under customary

international law as well as acts “in breach of rules of peremptory international law (Article 46 of

the [1907 Hague Convention No. IV, Annex] Regulations, and they were not acts jure imperii”

(or “public” acts). Id. (S.Ct. 2000), extract reprinted in PAUST, VAN DYKE, MALONE, supra at

732.

Since no state has authority to participate in international crimes and state sovereignty is

not relevant when international crimes have been committed, “foreign policy” should also be

irrelevant. States are on notice that international criminal conduct is without authority, and no

state can rightly be embarrassed by inquiry into its international criminal activity or acta contra

omnes. See also Prefecture of Voiotia v. Federal Republic of Germany (Greece 1997), supra;

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Princz v. Federal Republic of Germany, 26 F.3d 1166, 1182, 1184 (D.C. Cir. 1994) (Wald, J.,

dissenting) (“a state is never entitled to immunity for any act that contravenes a jus cogens norm,

regardless of where or against whom that act was perpetrated ... the state cannot be performing a

sovereign act entitled to immunity” and “Germany could not have helped but realize that it might

one day be held accountable for its heinous actions by any other state, including the United

States”); Filartiga v. Pena-Irala, 577 F. Supp. 860, 862 (E.D.N.Y. 1984) (“there is no ...

justifiable offense to” a foreign state when jurisdiction is exercised over torture); EMERICH DE

VATTEL, THE LAW OF NATIONS bk. I, chpt. IV, sec. 54 (1758) (“The Prince ... who would in his

transports of fury take away the life of an innocent person, divests himself of his character, and is

not longer to be considered in any other light than that of an unjust and outrageous enemy”).

Several U.S. cases have also recognized the unavoidable fact that war crimes and other

violations of international criminal law and human rights law cannot be lawful “official” or

“public” acts of state and are not entitled to immunity. See, e.g., Sarei v. Rio Tinto, PLC, 487

F.3d 1193, 1210 (9th Cir. 2007) (“acts of racial discrimination cannot constitute official

sovereign acts,” also quoting Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 718

(9th Cir. 1992) (“[i]nternational law does not recognize an act that violates jus cogens as a

sovereign act”)); Enahoro v. Abubakar, 408 F.3d 877, 893 (7th Cir. 2005) (Cudahy, J.,

dissenting) (“officials receive no immunity for acts that violate international jus cogens human

rights norms (which by definition are not legally authorized acts.)”); Doe I v. Unocal Corp., 395

F.3d 932, 958-59 (9th Cir. 2002); Altmann v. Republic of Argentina, 317 F.3d 954, 967 (9th Cir.

2002), quoting West v. Multibanco Comermex, S.A., 807 F.2d 820, 826 (9th Cir. 1987)

(“violations of international law are not ‘sovereign’ acts”); In re Estate of Ferdinand Marcos,

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Human Rights Litigation Hilao v. Estate of Ferdinand Marcos, 25 F.3d 1467, 1471 (9th Cir.

1994) (human rights violations, including torture, are not lawful public acts of state); Liu v.

Republic of China, 892 F.2d 1419, 1432-33 (9th Cir. 1989) (act of state doctrine not applied to

assassination, which is not in the “public interest” and a strong international consensus exists that

it is illegal), cert. dismissed, 497 U.S. 1058 (1990); Bowoto v. Chevron Corp., 2007 WL

2349345 (N.D. Cal. 2007) (quoting Siderman, quoted above in Sarei); Presbyterian Church of

Sudan v. Talisman Energy, Inc., 244 F. Supp.2d 289, 344-35 (S.D.N.Y. 2003) (adjudication of

genocide, war crimes, enslavement, and torture is not barred by the act of state doctrine); Cabiri

v. Assasie-Gyimah, 921 F. Supp. 1189, 1198 (S.D.N.Y. 1996) (defendant could not argue that

torture fell within the scope of his authority); Xuncax v. Gramajo, 886 F. Supp 162, 176 (D.

Mass. 1995) (“these actions exceed anything that might be considered to have been lawfully

within the scope of Gramajo’s official authority,” and quoting Letelier v. Republic of Chile, 488

F. Supp. 665, 673 (D.D.C. 1980) (assassination is “clearly contrary to precepts of humanity as

recognized in both national and international law” and so cannot be part of official’s

“discretionary” authority), cert. denied, 471 U.S. 1125 (1985)); Paul v. Avril, 812 F. Supp. 207,

212 (S.D. Fla. 1993) (defendant’s argument regarding “the act of state and political question

doctrines is completely devoid of merit. The acts ... [of torture, cruel, inhuman and degrading

treatment, and arbitrary detention in violation of customary international law] hardly qualify as

official public acts” and regarding the political question doctrine, the claims present “clearly

justiciable legal issues”); Forti v. Suarez-Mason, 672 F. Supp. 1531, 1546 (N.D. Cal. 1987)

(torture, arbitrary detention, and summary execution “are not public official acts”); see also

Johnson v. Eisentrager, 339 U.S. 763, 765, 789 (1950) (no form of immunity exists for war

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crimes in violation of Geneva law); Berg v. British and African Steam Navigation Co. (The Prize

Ship “Appam”), 243 U.S. 124, 153-56 (1917) (jurisdiction recognized regarding German

government’s violation of the law of nations and relevant treaties and nonimmunity existed

because “an illegal capture would be invested with the character of a tort” [id. at 154] and

jurisdiction is not obviated despite the intervention of the German ambassador and a claim that

since proceedings had been instituted in Germany that the U.S. court should decline. Id. at 147,

152.); The Santissima Trinidad, 20 U.S. (7 Wheat.) 283, 350-55 (1822) (property taken by a

foreign ship of war in violation of the law of nations is not immune and “is liable to the

jurisdiction of our Courts”); Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir. 1996) (regarding

the political question doctrine, “[i]n Linder v. Portocarrero, 963 F.2d 332, 337 (11th Cir. 1992),

we held that the political question doctrine did not bar a tort action instituted against Nicaraguan

Contra leaders [for war crimes in violation of common Article 3 of the Geneva Conventions].

Consequently, we reject Negewo’s contention in light of Linder.”); Daventree, Ltd. v. Republic

of Azerbaijan, 349 F. Supp.2d 736, 755 n.4 (S.D.N.Y. 2004) (“the Act of State doctrine only

applies to valid acts of state”); Doe v. Unocal Corp., 963 F. Supp. 880, 892-95 (C.D. Cal. 1997)

(“Because nations do not, and cannot under international law, claim a right to torture..., a finding

that a nation committed such acts ... should have no detrimental effect on the policies underlying

the act of state doctrine. Accordingly, the Court need not apply the act of state doctrine in this

case”); United States v. La Jeune Eugenie, 26 F. Cas. 832, 847-51 (C.C.D. Mass. 1821) (No.

15,551) (regarding “an offence against the universal law of society,” “no nation can rightly

permit its subjects to carry in on, or exempt them ... [and] no nation can privilege itself to

commit a crime against the law of nations”); Senate Report, S.Rep. No. 249, 102nd Cong., 1st

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Sess. 8 (1991) (the act of state doctrine “applies only to ‘public’ acts, and no state commits

torture as a matter of public policy,” adding: “[a] state that practices torture and summary

execution is not one that adheres to the rule of law. Consequently, the [TVPA] is designed to

respond to this situation by providing a civil cause of action in US courts,” and the Senate

Judiciary “Committee does not intend the ‘act of state’ doctrine to provide a shield from

lawsuit....”); 9 Op. Att’y Gen. 356, 357 (1859) (“A sovereign who tramples upon the public law

of the world cannot excuse himself by pointing to a provision of his own municipal code”).

More generally, Justice Breyer has recognized that universal jurisdiction with respect to

“war crimes,” among others, “necessarily contemplates a significant degree of civil tort

recovery.” Sosa v. Alvarez-Machain, 542 U.S. 692, 762 (2004) (Breyer, J., concurring).

IV. A COMITY-FACTORS APPROACH MUST NOT BE APPLIED TO WAR CRIMES

A comity-factors approach must not be applied with respect to jurisdiction over war

crimes, since they implicate universal jurisdiction and nonimmunity under international law.

Concerning universal jurisdiction over and nonimmunity with respect to customary international

crime, see, e.g., PAUST, BASSIOUNI, ET AL., ICL, supra at 31-34, 155-74. The comity-factors

approach suggested by the RESTATEMENT OF FOREIGN RELATIONS LAW OF THE UNITED STATES §

403 (3 ed. 1987), if ever preferable, would only apply to jurisdictional bases listed in § 402 (e.g.,

territorial, nationality, and protective) and expressly does not reach or limit the exercise of

universal jurisdiction under § 404. See also PAUST, BASSIOUNI, ET AL., ICL, supra at 210-11. It

was error, therefore, to attempt to deny jurisdiction through a comity-factors approach under §

403 in this case. But see D. Ct. op. at 23-24, 32-33.

Moreover, Congress and the courts generally ignore such a limiting approach to

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jurisdiction, especially if nationality or protective jurisdiction pertains. See, e.g., PAUST,

BASSIOUNI, ET AL., ICL, supra at 208, 210. It is not a requirement of customary international law

(or any relevant treaty) and it is an ad hoc, slot-machine approach using vague factors without

guidance as to what factors should be weighted, how, and in what circumstances. Id. at 208-09.

Moreover, Congress has not chosen a comity-factors limitation of jurisdiction over foreign states

and foreign state entities under the FSIA and it would be inappropriate for courts to add limits

that Congress has not chosen.

In fact, under Section 1602 of the FSIA, Congress has expressly declared that “[c]laims

of foreign states to immunity should henceforth be decided by courts of the United States and of

the States in conformity with the principles set forth in this chapter.” “[T]he central purpose of

the bill” to create the FSIA was to ensure “[t]hat decisions on claims by foreign states to

sovereign immunity are best made by the judiciary on the basis of a statutory regime which

incorporates standards recognized under international law.” House Report No. 94-1487, at 6613

(1976). It is not for the courts to deny jurisdiction where Congress has authorized jurisdiction

and has declared that issues are to be decided by courts on the basis of the principles set forth in

its legislation.

When interpreting the FSIA, in addition to the fact that Congress has directed the courts

to use “the principles set forth” (which also incorporate “standards recognized under

international law”), it must be emphasized that the Supreme Court has mandated more generally

that federal statutes must be interpreted consistently with international law. See, e.g., The

Charming Betsy, 6 U.S. (2 Cranch) 64, 117-18 (1804) (Marshall, C.J.) (“An Act of Congress

ought never to be construed to violate the law of nations if any other possible construction

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remains, and, consequently can never be construed to violate ... rights ... further than is warranted

by the law of nations.”). There were other early recognitions of this fundamental rule of

construction. See, e.g., Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 43 (1801); 1 Op. Att’y Gen. 26,

27 (1792); see also id. at 53 (stating that the municipal law is strengthened by the law of

nations); Ross v. Rittenhouse, 2 U.S. (2 Dall.) 160, 162 (Pa. 1792); The Resolution, 2 U.S. (2

Dall.) 1, 4 (1781); 11 Op. Att’y Gen. 297, 299–300 (1865); 9 Op. Att’y Gen. 356, 362–63

(1859); The Ship Rose, 36 Ct. Cl. 290, 301 (1901); The Schooner Nancy, 27 Ct. Cl. 99, 109

(1892); PAUST, VAN DYKE, MALONE, supra at 153-54. The rule has modern recognition. See,

e.g., id. at 154. As noted, international law recognizes universal jurisdiction and nonimmunity

(including the fact that violations of international criminal law are not public, sovereign or

official acts of state with respect to sovereign immunity or act of state doctrines) and does not

recognize a comity-factors limitation of universal jurisdiction.

V. ISSUES WHETHER WAR CRIME RESPONSIBILITY EXISTS ARE NOT

“POLITICAL” BUT LEGAL QUESTIONS

As noted more generally in Abebe-Jira, Linder, and Paul v. Avril (each quoted above in

Part III), the political question doctrine must not bar a claim addressing war crimes or other

serious violations of international law (which are beyond the lawful authority of any state) and

claims regarding such violations present justiciable legal issues, not political questions. See also

The Peterhoff, 72 U.S. (5 Wall.) 28, 57 (1866) (“we administer the public law of nations, and are

not at liberty to inquire what is for the particular ... disadvantage of our own or another

country”); Alperin v. Vatican Bank, 410 F.3d 532, 548 (9th Cir. 2005) (the political question

doctrine did not bar claims regarding Nazi era unlawful conversion of property and such claims

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are within judicial power and “are not committed to the political branches); cf Kadic v. Karadzic,

70 F.3d 232, 249 (2d Cir. 1995) (“[w]e disagree” that war crimes, genocide, torture, and so forth

“present nonjusticiable political questions” because the issues have been constitutionally

committed to the courts and norms of customary “international law provide judicially

discoverable and manageable standards”).

Questions arising under international law are within constitutionally-based judicial power

as well as federal question and subject matter jurisdiction allocated to the courts. See, e.g., U.S.

Const., art. III, § 2; 28 U.S.C. § 1331; PAUST, VAN DYKE, MALONE, supra at 125-33;

RESTATEMENT, supra § 111 & cmnts. c-e; Jordan J. Paust, Judicial Power to Determine the

Status and Rights of Persons Detained Without Trial, 44 HARV. INT’L L.J. 503, 514-24 (2003);

Jordan J. Paust, In Their Own Words: Affirmations of the Founders, Framers, and Early

Judiciary Concerning the Binding Nature of the Customary Law of Nations, 14 U.C. DAVIS J.

INT’L L. & POL’Y 205, 231-39 (2008). As Chief Justice Marshall recognized concerning the

textual commitment to the judiciary of authority to decide cases arising under treaties and a test

for self operative status and treaty-based remedies, “[t]he reason for inserting that clause [in

Article III of the Constitution] was, that all persons who have real claims under a treaty should

have their causes decided” by the judiciary and that “[w]henever a right grows out of, or is

protected by, a treaty, ... whoever may have this right, it is to be protected” by the judiciary.2

2 Owings v. Norwood’s Lessee, 9 U.S. (5 Cranch) 344, 348-49 (1809) (Marshall, C.J.). Clearly, a right that “grows out of” or is “protected by” a treaty can be an implied right, an express right, and a right that is evident even though the treaty contains no mention of various forms of remedy that might attach. This type of test was reiterated by Justice Miller in 1884. See Edye v. Robertson, 112 U.S. 580, 598-99 (1884) (Miller, J., opinion) (“whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be

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One year later, he confirmed a fundamental expectation of the Framers with respect to judicial

power and human rights when recognizing that our judicial tribunals “are established ... to decide

on human rights.”3 With respect to judicial power and the laws of war in particular, the Supreme

Court has stressed, “[f]rom the very beginning of its history this Court has recognized and

applied the law of war as including that part of the law of nations which prescribes ... the status,

rights and duties of ... individuals.” Ex parte Quirin, 317 U.S. 1, 27 (1942).

Additionally, as noted in Part IV, Congress has directed the courts to decide claims to

immunity and to do so in accordance “with the principles set forth” in the FSIA. There,

Congress also determined that judicial resolution will “serve the interests of justice and would

protect the rights of both foreign states and litigants.” 28 U.S.C. § 1602.

CONCLUSION

determined.” (emphasis added)). A number of Supreme Court cases have also recognized that treaties are to be construed in a broad manner to protect express and implied rights. See, e.g., Factor v. Laubenheimer, 290 U.S. 276, 293–94 (1933); Nielsen v. Johnson, 279 U.S. 47, 51 (1929); Jordan v. Tashiro, 278 U.S. 123, 127 (1928); Asakura v. City of Seattle, 265 U.S. 332, 342 (1924) (“Treaties are to be construed in a broad and liberal spirit, and, when two constructions are possible, one restrictive of rights that may be claimed under it and the other favorable to them, the latter is to be preferred.”); United States v. Payne, 264 U.S. 446, 448 (1924) (“Construing the treaty liberally in favor of the rights claimed under it, as we are bound to do....”); De Geofroy v. Riggs, 133 U.S. 258, 271 (1890) (“where a treaty admits of two constructions, one restrictive of rights that may be claimed under it and the other favorable to them, the latter is to be preferred.”); Hauenstein v. Lynham, 100 U.S. 483, 487 (1879) (“Where a treaty admits of two constructions, one restrictive as to the rights, that may be claimed under it, and the other liberal, the latter is to be preferred.”), citing Shanks v. Dupont, 28 U.S. (3 Pet.) 242, 249 (1830) (“If the treaty admits of two interpretations, and one is limited, and the other liberal; one which will further, and the other exclude private rights; why should not the most liberal exposition be adopted?”).

3 Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 133 (1810) (Marshall, C.J.). Concerning the rich history of Founder, Framer, and judicial attention to human rights (which are generally at stake in these cases) and their use in thousands of federal and state cases, see, e.g., PAUST, supra at 193-223.

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Plaintiff Appellants have rights under treaty-based and customary international law that

would be violated by the alleged confiscations or takings of property, assuming that their

allegations are true. The violations of international law in this instance are war crimes over

which there is universal jurisdiction without limitation and nonimmunity under international law.

If plaintiffs’ allegations are true, the confiscations or takings fit within Section 1605(a)(3) of the

FSIA and there should not be any limitation of jurisdiction under the act of state doctrine, a

comity-factors approach, or the political question doctrine when international crimes have

allegedly occurred.

Amicus Curiae the Human Right Committee of the American Branch of the International

Law Association respectfully request that the Circuit Court reverse the decision of the District

Court regarding Section 1605(a)(3) of the FSIA, the act of state doctrine, use of a comity-factors

approach when universal jurisdiction pertains, and the political question doctrine, and remand the

case for further proceedings.

Respectfully submitted,

JORDAN J. PAUST MIKE AND TERESA BAKER LAW CENTER PROFESSOR UNIVERSITY OF HOUSTON LAW CENTER 100 Law Center Houston, TX 77204-6060 (713) 743-2177 Fax (713) 743-2238

Counsel for Amicus Curiae DATED: MAY , 2009